pleas fail to aver that defendant's conductor used no more force than was necessary in putting plaintiff out on the platform of said

car.

To the sixth plea the plaintiff demurred upon the following grounds: "(1) Because the averment in said plea, that the defendant is in no way responsible for the conduct of said Martin at the time of the alleged injury, is a mere conclusion of the pleader. (2) Because the averment that the said Martin was at the time acting as a police officer of the state of Alabama, by virtue of the power conferred upon him under section 3457 of the Code of Alabama, is a mere conclusion of the pleader, and no valid defense to plaintiff's complaint." These demurrers were overruled, and issue was joined on the pleas filed by the defendant.

The evidence introduced for the plaintiff tended to show that, having a ticket which entitled him to ride as a passenger on defendant's train, he boarded said train, and that, as he was trying to find a seat in the coach which he had entered, Bright Martin, the conductor on said train, forcibly took hold of the plaintiff and knocked him to his knees, and then shoved him down the aisle to the platform of the car, where he caught him in the collar with one hand and by the leg with the other hand, and threw him from the platform into a ditch near the side of the track; that at the time he was so assaulted by the conductor the plaintiff was in no way misbehaving; that he was not drunk at the time, nor was he boisterous or cursing; that after he was thrown in the ditch he was helped on the train by two other people, and while he was being put on the train the conductor Martin also helped put him back on the train. The plaintiff introduced evidence tending to show that he sustained the injuries complained of in the complaint. The plaintiff sought to prove that upon entering the train he went to his son, who was sitting down, and asked him to lend him 15 cents. The defendant objected to the introduction of this evidence, the court sustained the objection, and the plaintiff duly excepted. The plaintiff sought to prove by several of the witnesses that, at the time the plaintiff was ejected from the train, there was the use of a great deal of profane language by persons who were on the outside of the car. The defendant objected to the introduction of this evidence, the court sustained the objection, and the plaintiff duly excepted.

During the examination of one Mose Head, a witness for the plaintiff, he testified, in answer to a question, that the plaintiff told him after the train pulled out that he wanted the witness "to take care of him." The defendant objected to the question which elicited this answer, the court sustained the objection, and the plaintiff duly excepted. Upon motion of the defendant the court excluded the answer from the jury, and to this ruling the plaintiff duly excepted.

The evidence for the defendant tended to show that at the time the plaintiff boarded the train he was very drunk; that there were in the coach at the time several women; that the plaintiff used vulgar and obscene language, and was very boisterous; that the conductor remonstrated with him, and asked him not to be guilty of such conduct, and told him if he did not stop he would have to put him off the train; that, upon plaintiff continuing to be guilty of such boisterous and indecent conduct, the conductor pushed him to the door onto the platform, and that he was so drunk that he fell from the platform into the ditch. On the cross-examination of each of the defendant's witnesses, they testified that the defendant gave them passes over the road to attend the trial and paid all of their expenses.

The plaintiff requested the court to give to the jury the following written charge, and separately excepted to the court's refusal to give the same as asked: "(6) The court charges the jury that, if they believe reasonably from the evidence that conductor Martin knew at the time he ejected plaintiff that be was so drunk as to be unable to protect himself, then it makes no difference whether plaintiff fell off said platform or was pushed off, the Nashville, Chattanooga & St. Louis Railway would be liable in damage."

The plaintiff separately excepted to the court giving, at the request of the defendant, the following written charges: "(2) The fact that the defendant paid the actual expenses of its witnesses while attending this trial has nothing to do with the issues in this case; such payment by the defendant was right and proper. (3) Under the law in this state, the conductor of a railroad train is a police officer, and not only has the right, but it is his duty, to keep order on the train on which he is conductor, and to eject all persons who use obscene or abusive language in the presence and hearing of the passengers. (4) If the jury believe from the evidence that the plaintiff, Moore, was intoxicated, and used obscene or vulgar language in the car of the defendant railway, then the conductor had the right to put Moore out of the car, and to use such force as was necessary to accomplish it. (5) The court charges the jury that if they find from the evidence that at the time of the alleged injury plaintiff was a passenger on defendant's train, that Bright Martin was a conductor on said train, that plaintiff became disorderly, in that he used profane, vulgar, or indecent language, which act on the part of the plaintiff rendered it necessary for the said Bright Martin to eject plaintiff, and that, while Martin was trying to eject plaintiff from the train, plaintiff resisted the efforts of Martin to so eject him, which resistance on the part of the plaintiff was the cause of the plaintiff being injured, then the jury should find a verdict for the defendant."

There were verdict and judgment for the

defendant. The judgment entry is in the following language: "On this the 18th day of November, 1902, come the parties by attorney, and the plaintiff demurs to defendant's pleas. It is considered and adjudged by the court that the demurrers be, and the same are hereby, overruled. Issue being joined, come a jury of good and lawful men, to wit, W. H. Scarbrough and eleven others, who, being duly sworn and charged according to law, upon their oaths do say: 'We, the jury, find in favor of the defendant.' It is therefore considered by the court that the defendant go hence and recover of the plaintiff the costs in this behalf expended, for which let execution issue. It is further considered by the court that the plaintiff have thirty days in which to prepare and have signed his bill of exceptions."

The plaintiff appeals, and assigns as error the several rulings of the court to which exceptions were reserved.

In this court the appellee made a motion to dismiss the appeal upon the following grounds: (1) The record shows that there was no judgment rendered by the court below which would support an appeal, and (2) that the bill of exceptions was not signed during term time, and there was no such order of the court as authorized it to be signed after the adjournment of the court. The judgment of the court was rendered on November 18, 1902. The bill of exceptions was signed on December 17, 1902.

McCord & McCord, for appellant. Oscar R. Hundley, for appellee.

TYSON, J. The motion of appellee to dismiss the appeal because no judgment was rendered by the trial court upon the verdict of the jury must be denied. Bell v. Otts, 101 Ala. 186, 13 South. 43, 46 Am. St. Rep. 117; 1 Freeman on Judgments, § 2. The order of the court allowing 30 days for the preparation and signing of the bill of exceptions is sufficient.

The complaint alleges a wrongful ejection of the plaintiff by the conductor from one of the cars of defendant onto the platform of said car, and from there to the ground, resulting in injuries to his person. The defendant filed five special pleas, numbered 2, 3, 4, 5, and 6. All of them except the sixth are in form pleas of contributory negligence. They are, however, really an attempt to justify the conduct of the conductor in ejecting the plaintiff under section 3457 of the Code of 1896. As pleas of justification they are manifestly insufficient. While they aver the disorderly conduct of the plaintiff, they do not aver that the conductor used only such force as was necessary to accomplish his removal from the car. The demurrer inter

posed to each of them should have been sustained. The sixth was also bad. It averred substantially nothing more than that the con

ductor at the time he elected the plaintiff was acting as a police officer of the state by virtue of the power conferred upon him by section 3457. The fact that he was clothed with the authority of a police officer and acted in that capacity on the occasion of plaintiff's ejection does not relieve his company (the defendant) from liability if he was not justified in the exercise of that authority, or if in the exercise of it he used more force than was necessary.

We are unable to see the relevancy of the testimony offered by plaintiff that he applied to his son to loan him 15 cents, or that cursing or profane language was used by others who were on the outside of the car. Nor was there error in excluding the request to Head by plaintiff "to take care of him" after he had received the injuries complained of. None of these matters were a part of the res gestæ of the transaction, and could shed no light upon the material issue in the

case.

Charge 6 requested by plaintiff was properly refused. The negligence of the conductor in leaving the plaintiff on the platform, after ejecting him from the car, knowing that he was so drunk as to be unable to take care of himself, is not counted on in the complaint, and could not, therefore, be made the basis of a recovery.

Charge No. 2 given at the request of defendant was improper. It invaded the province of the jury, and asserted an incorrect proposition of law. While it may be true, as asserted in it, that it was right and proper for the defendant to pay the expenses of its witnesses, yet the fact that its witnesses were transported by it to the place of the trial free of charge and their hotel bills paid is a circumstance tending to show bias, and was proper matter for the consideration of the jury. Ala. Great So. R. Co. v. Johnston, 128 Ala. 283, 21 South. 771. This being true, it was clearly error to instruct the jury that, as matter of law, the fact that defendant paid the expenses of its witnesses "has nothing to do with the issues in the case."

The only objection urged against charge 3 given for defendant is that it was misleading. It asserted a correct proposition of law, and, if its tendency was to mislead, this should have been corrected by requesting an explanatory charge.

Conceding that charge 5 was abstract, the giving of it is not reversible error. 2 Mayfield's Dig. pp. 565, 573.

In conclusion, it may not be amiss to say that we cannot concur in the view urged by appellee's counsel that it was entitled to the affirmative charge, and therefore, if error was committed, it was without injury. The testimony was in direct conflict upon every material issue of fact presented by the pleadings.

Reversed and remanded,

DOWDELL, J. The defendant was tried and convicted on an indictment for gaming, and from that judgment of conviction he prosecutes this appeal. The defendant claimed immunity from prosecution for the offense charged under the provisions of section 4805 of the Criminal Code. He sought to avail himself of the provisions of this statute first by motion to quash the indictment and then by plea, the motion having been overruled. The protection guarantied in section 4805 to the witness testifying as to gaming against being prosecuted for any offense of gaming so testified to by him when being called to answer generally as to any such offense, within his knowledge, committed within the 12 months next preceding, without first being specially interrogated as to any particular offense, is a question for the determination of the court, and the motion to quash the indictment was the proper practice. Sparrenberger v. State, 53 Ala. 481, 25 Am. Rep. 643. On the hearing of the motion it was shown without contradiction that the defendant was summoned before the grand jury that preferred the indictment to give evidence of any violation of the laws against gaming, and was required to answer generally as to any such offense, within his knowledge, committed within the 12 months next preceding, without having been first specially interrogated as to any particular offense; that he testified to a game played with cards, in which witness himself had participated; that the indictment against him was for the particular game testified to by him as a witness before the grand jury, and was found against him after he had given his testimony before the grand jury. This evidence clearly put the defendant within the protection of the provision of the statute against a prosecution, and on it, undisputed as it was, the motion to quash the indictment should have been sustained. The fact that another wit

ness had been called before the grand jury before the defendant, and that such other witness had testified to the same game, implicating the defendant in it, would not deprive the defendant of the immunity afforded by the statute upon the theory that the indictment against him was found on the testimony of such other witness. It is wholly immaterial and unimportant that there was other evidence adduced before the grand jury, which was sufficient, without regard to that given by the defendant, to authorize the finding of the indictment. The fact remained that the defendant was indicted after he had been required as a witness to answer generally as to any violation of the laws against gaming within his knowledge, and had so answered, thereby entitling himself to protection from prosecution as to any such offense so testified to by him.

It is unnecessary to consider the questions which arose on the trial before the jury upon the admission and rejection of evidence, since the motion to quash the indictment should have been sustained, and for the refusal of which by the court the judgment must be reversed, and a judgment will be rendered quashing the indictment and discharging the defendant.

Reversed and rendered.

(137 Ala. 640)

LITTLE et al. v. STATE ex rel. HUEY et al. (Supreme Court of Alabama. June 3, 1903.) QUO WARRANTO-SECURITY FOR COSTS-APPROVAL-PAROL EVIDENCE.

1. Code 1896, § 3421, provides that quo warranto may be brought without the direction of the judge of the circuit court on the information of any person giving security for the costs, to be approved by the clerk of the court. Held, that it cannot be conclusively presumed that the paper purporting to be a security for costs, but not indorsed with the approval of the clerk, was in fact approved by him, but that parol evidence is admissible to show that it was not so approved.

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Quo warranto by the state, on relation of T. T. Huey and others, against E. A. Little and others, board of police commissioners of the city of Bessemer. From a judgment for relators, respondents appeal. Reversed.

It was averred in the petition that the petitioners had been and were the duly elected board of mayor and aldermen of the city of Bessemer, and were exercising all the corporate powers, franchises, and privileges and rights conferred upon them, and were discharging the duties of their said office; that on March 17, 1903, the respondents E A. Little et al. were appointed by the Governor of the state a board of police commissioners for the city of Bessemer, and were claiming by virtue of such appointment to be clothed with the power and charged with the duty of exercising the exclusive right to ap

point a chief of police, and such other officers and police as they might deem necessary for the proper protection of said city, and were claiming the right to exercise certain other enumerated powers. That said Little and the other respondents under such claim had usurped, intruded into, and were unlawfully holding and claiming to exercise such powers and franchises as had, by act of the Legislature establishing a charter for the city of Bessemer, been conferred upon the board of mayor and aldermen of the city of Bessemer, and said respondents had organized and were proceeding to exercise the rights of the board of police commissioners. It was then further averred that the Governor of the state was without authority or legal power to appoint the respondents as such board of police commissioners, and that there was no such office under the Constitution and laws of the state.

The prayer of the petition was for the issuance of a writ showing by what authority the respondents claimed the rights and powers to exercise the office of the board of police commissioners, and that it be adjudged that they were intruding upon the powers and rights conferred upon the board of mayor and aldermen of the city of Bessemer, and that the respondents be excluded from the exercise of any of the powers, privileges, or management, control, or regulation of the po lice power or of the sanitary power of the city of Bessemer.

The purpose of the proceeding instituted Dy said petition was to test the constitutionality of the act of the Legislature approved March 3, 1903, creating a board of police commissioners for the city of Bessemer, and authorizing the Governor to appoint police commissioners for the city of Bessemer.

Upon the filing of the information and the issuance of the writ, the respondents filed a motion to dismiss the writ and the proceeding, upon the ground that the relators had failed to give security for costs. The facts in relation to this motion are sufficiently stated in the opinion. Upon the overruling of this motion, the respondents filed a demurrer to the petition. This demurrer was overruled, and thereupon the respondents filed an answer in which they set up the act creating a board of police commissioners for the city of Bessemer, and conferring the power upon the Governor to appoint said board, and that they were duly appointed by the Governor under said act and were proceeding to exercise the rights, powers and privileges conferred by said act. The petitioners demurred to this answer upon the ground that the act set up in said answer was unconstitutional and void, upon the ground that said act was contrary to section 104 of the Constitution of 1901, was in violation of section 45 of the said Constitution, and was in violation of sections 105 and 106 of the Constitution. The court sustained the demurrers to this answer, and, the defendants declining to plead fur

ther, judgment was rendered in favor of the petitioner, and it was ordered that the respondents be excluded from the office of police commissioners of the city of Bessemer.

L. D. Godfrey, Pinckney Scott, and Bowman, Harsh & Beddon, for appellants. W. F. Porter and J. A. Estes, for appellees.

HARALSON, J. This petition appears to have been sworn to before the clerk and register of the court, on the 30th of March, 1903. On April 1st, following, the judge of said court issued his order, that upon the relator's giving security for costs of the proceeding, an alternative writ should issue according to the prayer of the petition. Following this order in the transcript, is found an acknowledgment as security for costs, signed by three persons, without date and without anything on it to indicate that it was filed, or that it was approved by the clerk. Next follows the return of the sheriff of date April 1st, 1903, showing the execution of the petition on the defendants. By section 3421 of the Code of 1896, it is provided that in an action of this character, it "may be brought without the direction of such judge [of the circuit court] on the information of any person giving security for the costs of the action, to be approved by the clerk of the court in which the action is brought." Construing this section, it was long ago held, that the statute contemplates, that the security should be given before the commencement of the suit, and that the security is a condition precedent to the right under the statute of instituting it. Taylor v. State, 31 Ala. 383; The State ex rel. v. Town Council, 30 Ala. 66.

The failure of the clerk to enter on the paper purporting to be a security for the costs his approval, did not vitiate it as such, and nothing appearing to the contrary, the presumption might be indulged that it was approved by him. This presumption is not conclusive, however, but is subject to be rebutted by proof that it was not in fact approved. Good v. Jones, 56 Ala. 538. It is proper to add, that no presumption can be raised that the security for costs was given and approved by virtue of the fact of the fiat of the judge of the city court found in the record, in respect to the giving of such security.

The defendants moved to dismiss the proceeding, on the ground, among others, that no security for costs had been given and approved by the clerk before the commencement of the suit, which motion the court overruled. In this connection defendants proposed to prove by the clerk, who was being examined as a witness, that he had not approved the security offered, but had expressly refused to do so. This evidence, on the objection of plaintiffs, the court would not allow. The evidence was admissible to rebut the presumption that might be other

1. Where property conveyed by a husband to his wife to pay a debt was worth less than $1,000, the creditors of the husband are not in a position to question his right to convey the property, it being exempted to him by law.

2. An owner of exempt property has an absolute ownership therein, and need not have it exempted to him by court proceedings in order to maintain his rights thereto against his creditors.

Appeal from Chancery Court, Barbour County; W. L. Parks, Chancellor.

Bill by George N. Skinner against R. M. Jennings and wife to have a sale of property declared a general assignment for the benefit of creditors. From a decree dismissing the bill, complainant appeals. Affirmed.

G. L. Comer, for appellant. A. H. Merrill, for appellees.

HARALSON, J. It is admitted that the defendant, R. M. Jennings, on the 15th May, 1902, was indebted to his wife, Janie G. Jennings, in the sum of $1,500, evidenced by his promissory note to her for that sum executed on the 2d of July, 1901, for money advanced by her to him on that date; that for the purpose of paying said indebtedness the said R. M. Jennings on that date,-15th May, 1902,-executed and delivered to her the bill of sale attached to the bill as an exhibit, by which he conveyed to her the different items of property therein described, at the nominal values therein stated,but the real value of which amounted only to $630.77,-and that this was substantially all the property he owned, except his wearing apparel, which was less in value than $100. The purpose of the bill is to have said bill of sale declared a general assignment, enuring to the benefit of complainant, a creditor of said R. M. Jennings, and his other creditors existing at the date of said conveyance; that said Janie G. Jennings be held to be a trustee under said bill of sale for the benefit of all of such creditors, and that the trust estate be administered under the orders and directions of the court, etc. The contention cannot be sustained. As to this property, being less in value than

$1,000, the owner, it may be said, had no creditors, and he was free to do with it as he chose.-to sell or give it to his wife, without the right of any creditor to complain, since it interfered with no right of his, legal or equitable. To allow that he was incapable of conveying it to his wife, to pay a debt he owed her,-though if he did not owe it would make no difference,-without its having the effect to convert the conveyance into a general assignment, would be to qualify and limit his exemption in a manner not sanctioned by the letter or policy of the exemption laws. Fellows v. Lewis, 65 Ala. 343, 39 Am. Rep. 1; Wright v. Smith, 66 Ala. 514; Shirley v. Teal, 67 Ala. 449; Lehman, Durr & Co. v. Bryan, Id. 558; Clewis v. Malon, 119 Ala. 312, 24 South. 767. His right to it was so perfect that he was under no legal obligation to have it exempted to him by any court proceeding. A selection of it as exempt was unnecessary, the law, without the doing of any act on his part, intervening and attaching the right of exemption as absolutely as if the particular property had been specifically designated and declared exempt. Alley v. Daniel, 75 Ala. 403; Jackson v. Wilson, 117 Ala. 432, 23 South. 521. Affirmed.

(137 Ala. 572)

WESTBROOK et al. v. HAYES. (Supreme Court of Alabama. June 4, 1903.) SPECIFIC PERFORMANCE-EVIDENCE-SUFFICIENCY-DISMISSAL OF CAUSE.

1. Evidence examined in an action for the specific performance of a parol contract respecting the sale of land, and held not to entitle complainant to a decree.

2. Where complainants' case was not made out by such harmonious pleading and proof as to entitle them to a decree, it was not error to dismiss the case in vacation without giving them an opportunity to amend.

Appeal from Chancery Court, Walker County; John C. Carmichael, Chancellor.

Bill by H. T. Westbrook and another against John N. Hayes for the specific performance of a parol contract to convey land. From a decree dismissing the bill, complainants appeal. Affirmed.

Curtis & Hipp, for appellants. M. F. Parker and D. A. McGregor, for appellee.

HARALSON, J. The bill in its second paragraph avers, "That during the month of January, 1892, or about that time, your orator, H. T. Westbrook, bought from defendant [the forty acres of land which is described] lying and being in Winston county, Alabama, and defendant sold said above described land to him." In the third section it is averred, "That the contract price of said land bought from defendant was agreed on, as one hundred and twenty-five dollars, the same to be paid in machinery, and your orators aver that said Westbrook at the time of purchase, paid the defendant the contract price of said