ers, it is, in our opinion, sufficient in averment to follow the language of the statute, and to allege that the debtor procured the issuance and levy of the writ.

The foregoing views have reference to the several assignments of demurrer interposed by the Lehman-Durr Company, and to the action of the court thereon. They serve to show our ruling upon each of said assignments; and, without particularizing, it will appear from what we have said that certain of the assignments of demurrer which were sustained by the chancellor should have been overruled, and that certain of them overruled should have been sustained. The decree of the chancellor, in so far as it overrules the motion to dismiss the bill for want of equity, is affirmed. Upon the demurrer of the Lehman-Durr Company, and in refusing to dissolve the injunction, and in overruling the motion to vacate the order appointing and to discharge the receiver, the decree will be reversed, and a decree will be here entered sustaining the demurrer. dissolving the injunction, and discharging the receiver. Complainants have 30 days in which to amend their bill; and when it is so amended, if it can be, in accordance with this opinion, they may, of course, renew their application for injunction and receiver. Affirmed in part, and reversed and rendered in part.

(118 Ala. 134)

NORWOOD v. STATE. (Supreme Court of Alabama. Aug. 15, 1898.) CRIMINAL LAW-INSTRUCTIONS-WEIGHt of EVIDENCE.

1. While the bias or ill will of a witness should always be considered by a jury in weighing his evidence, it is not the province of the court to instruct the jury that but little or no credence should be given to the testimony of a witness, because of his ill will.

2. An instruction as to the weight to be given to the statement, "if a witness says he did not see a thing," is properly refused, no witness having testified to not seeing anything.

Appeal from Bibb county court; N. H. Thompson, Judge.

John Norwood appeals from a conviction. Affirmed.

The appellant was prosecuted, tried, and convicted for carrying a pistol concealed about his person. The only question presented for review on the present appeal was the refusal of the court to give the charges requested by the defendant. The facts pertaining to these charges are sufficiently stated in the opinion. The charges requested by the defendant, and to the refusal to give each of which he separately excepted, were the following: "(6) I charge you, if you are convinced from the testimony that this prosecution is founded upon a desire upon the part of the prosecuting witness to satiate his feelings or grudge against the defendant, you should give his testimony but little weight in making up your verdict." "(13) Although a witness may say he has no ill

feeling or malice towards the defendant, yet it is your duty to carefully examine the manner and mode of the witness testifying, and, if he demonstrates ill will or feeling against the defendant, you should give such testimony very little credence. (14) If a witness says he did not see a thing, in determining how much weight should be given to such statement the jury should consider how much opportunity the witness had to see, in connection with all the evidence in the case. (15) I charge you that, if the witness for the state demonstrates ill will or feeling in the mode or manner of his testifying against the defendant, such demonstration may generate a doubt in your mind of the defendant's guilt, and you should acquit the defendant."

Cato D. Glover, for appellant. Wm. C. Fitts, Atty. Gen., for the State.

COLEMAN, J. The defendant was convicted of the offense of carrying a pistol concealed. The errors insisted on by counsel for appellant are based upon the refusal of the court to give charges numbered, respectively, 6, 13, 14, and 15. There were only two witnesses examined whose testimony was material,-one for the prosecution, and the defendant for himself. The evidence showed ill will between the witness for the prosecution and the defendant. The sixth and thirteenth charges were faulty, in that the principles of law asserted invaded the province of the jury. The bias or ill will of a witness should always be considered by a jury in weighing his evidence, but it is not the province of the court to instruct the jury that but little weight should be given to the veracity of a witness because of his ill will. The jury is made the sole judge of the weight of such testimony. The fifteenth charge is also faulty. Although facts testified to and the manner of a witness may be such as to generate a reasonable doubt, it does not follow that it must or ought to produce such an effect. The charge was faulty in that it demanded an acquittal whether or not the jury in fact entertained a reasonable doubt of his guilt.

The fourteenth charge refused by the court is an exact copy of a charge held by this court to be good in the case of Newell v. State, 109 Ala. 5, 19 South. 511. Charges, however, must be construed with reference to the facts in the case. In the Case of Newell, supra, the carrying of the pistol was admitted. The controverted question was whether it was concealed. State witnesses testified that they saw defendant, and did not observe the pistol until the defendant came from behind a tree; authorizing the inference that prior to that time the pistol must have been concealed. The defendant's contention was that the cylinder and handle of the pistol all the time were above the waistband of his pants, and open to ordinary observation; that he merely went behind the

tree to disengage it from his suspenders, and that the reason the pistol was not seen by the state's witnesses was on account of their relative position to his body and the pistol. On this state of facts the defendant requested the court to instruct the jury that, if a witness says he did not see a thing, in determining how much weight should be given to such a statement the jury should consider how much opportunity the witness had to see, in connection with all the evidence in the case. In the case at bar the state's witness testified that the defendant was standing at the door of the room, talking to him, and as the defendant turned to walk away he saw the pistol in the hip pocket of defendant, under his coat. The defendant testified that he did not have a pistol on his person. To have applied the rule of evidence in the case at bar declared to be correct in the Newell Case, the charge should have been framed so as to assert that when "a witness says he saw a thing, in determining how much weight," etc. Under the facts of the case at bar, the charge, technically construed, was abstract, as no witness testified that he did not see the pistol. Affirmed.

APPEAL-DISMISSAL-INTERLOCUTORY DECREE.

An appeal from an interlocutory decree striking from the file a demurrer incorporated in the answer, not being authorized by statute, will be dismissed ex mero motu.

Appeal from city court of Gadsden; John H. Disque, Judge.

Bill by the First National Bank of Gadsden and another against J. A. Richardson to enforce a vendor's lien. From a decree striking from the file a demurrer incorporated in the answer, defendant appeals. Dismissed. Burnett & Culli, for appellant. Dortch & Martin, for appellees.

BRICKELL, C. J. The appellant filed a demurrer to the original bill in this cause, and a decree was rendered overruling the same. Subsequently an answer was filed in which was incorporated a demurrer to the bill, specifying many grounds of objections not contained in the original demurrer. A motion was made to strike from the file the demurrer incorporated in the answer, and a decree was rendered granting the motion, and striking the demurrer from the file; the decree stating, "the court having heretofore ruled upon said demurrer, overruling the same." No final decree was rendered, so far as the record shows; and, although the overruling of the original demurrer is assigned as error, it clearly appears that the only decree from which the appeal is prosecuted is

that striking from the file the demurrer incorporated in the answer. This court has no jurisdiction to entertain an appeal not authorized by the statute, and jurisdiction cannot be conferred by consent of the parties or by joinder in error; and, when an appeal is sued out from a decree from which no appeal is authorized by statute, it will be dismissed ex mero motu. Barclay v. Spragins, 80 Ala. 357; Nabers v. Mining Co., 103 Ala. 543, 15 South. 850. The statute authorizes an appeal from only three classes of interlocutory decrees, namely, decrees sustaining or overruling a demurrer to a bill in equity, decrees sustaining or overruling a plea to such bill, and decrees sustaining or overruling a motion to dismiss the bill for want of equity. Code 1896, § 427. It is manifest the decretal order appealed from does not belong to either of the above classes, and that it is not a final decree. The appeal was therefore not authorized by the statute, and must be dismissed ex mero motu.

(119 Ala. 279)

TREADWELL v. TORBERT. (Supreme Court of Alabama. Aug. 15, 1898.) COMPOUNDING FELONY-RECOVERY OF PAYMENT.

One cannot recover property which she conveys to another in consideration of his stopping and dismissing a criminal prosecution of her husband.

Appeal from chancery court, Geneva county; Jere N. Williams, Chancellor. Suit by Fannie O. Treadwell against C. C. Torbert. Decree for defendant. Complainant appeals. Affirmed.

It was averred in the bill: That on June 27, 1895, the complainant executed and delivered to the defendant a deed to certain specifically described land, which was her separate estate; she at the time being the wife of H. P. Treadwell. That the circumstances under which the deed was executed were as follows: That in May, 1895, the defendant, C. C. Torbert, made an affidavit before a justice of the peace charging H. P. Treadwell, the husband of the complainant, with the offense of obtaining money to the amount of $800 from him (Torbert) by false pretenses. A warrant was issued upon this affidavit, and Treadwell was arrested upon said charge. Immediately after the arrest of H. P. Treadwell, C. C. Torbert agreed to stop the criminal prosecution and dismiss the same if the said H. P. Treadwell would get a deed from his wife (the complainant) to the said Torbert on the lands described therein. That said deed was obtained, and thereupon the prosecution was ended, and dismissed by the appellee. It was then averred that the only consideration for the execution of the deed from the complainant to the defendant was the dismissal of the criminal prosecution against the complainant's husband, and that the consideration recited in the deed was

false. The prayer of the bill was that said deed be declared void and inoperative, and be canceled. The respondent moved to dismiss the bill for the want of equity. Upon the submission of the cause upon this motion, the chancellor rendered a decree granting the motion, and ordering the bill dismissed.

W. O. Mulkey, for appellant. George P. Harrison, for appellee.

BRICKELL, C. J. If the facts stated in the bill (or "petition," as it is styled) were embodied in an indictment, they would constitute the offense of compounding felony, as it is described in the statute (Cr. Code 1896, § 4427). The general doctrine prevailing in courts of law and of equity is that the law leaves all who share in the guilt of an illegal or immoral transaction where it finds them. It will neither lend its aid to enforce contracts, while executory, forming part of the transaction; nor will it undo or rescind such contracts when executed. 3 Brick. Dig. pp. 144-147. The case made by the bill falls within this doctrine, and is in all respects strictly analogous to Clark v. Colbert, 67 Ala. 92. It may be matter of regret now, with the complainant, that she parted with her land to procure the discharge of her husband from prosecution for the grave criminal charge preferred against him, and for which he was under arrest. The courts are bound to leave her where they find her. As was said in a kindred case: "If men, in consummation of frauds, employ instruments binding and conclusive in their legal operation and effect, it is sound reason, good policy, sheer justice, to leave them where they have placed themselves, bound as they have bound themselves, without assistance from the courts to unloose them when it becomes their interest to be unloosed, encouraging them and others to commit similar frauds." Williams v. Higgins, 69 Ala. 517. The decree of the chancellor must be affirmed.

(118 Ala. 117)

SMITH v. STATE. (Supreme Court of Alabama. Aug. 15, 1898.) SEDUCTION-EVIDENCE OF CHASTITY-INSTRUC

TIONS.

1. Evidence of prosecutrix's chastity before and at the time of the alleged seduction, but not thereafter, is admissible.

2. General objection to question calling for evidence, part of which proper, is not good.

3. A charge authorizing conviction if the jury believed a certain thing is not erroneous because ignoring proof of venue, no instruction in respect thereto having been refused.

4. It is proper to charge on a criminal prosecution that, in determining credence to be given the testimony of defendant, they will look to the fact, in connection with all the other evidence, that he is interested in the result.

5. The chastity of prosecutrix in a seduction case must be presumed, and the burden is on defendant to impeach it.

6. A requested charge, "that to authorize conviction for seduction the woman must be chaste in fact at the time of her alleged seduction; that inquiry being not as to her character, reputation for chastity at the time of her alleged seduction; but as to her actual chastity at the time," while asserting a generally correct principle of law, is properly refused, as calculated to confuse and mislead; evidence having been introduced by the state tending to show the character of prosecutrix up to the time of the alleged seduction in rebuttal of evidence by defendant tending to impeach her chastity at that time.

7. To establish chastity of one at the time of her alleged seduction, it appearing that she had theretofore had sexual intercourse, it must be shown that she had reformed.

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

George Smith was convicted of seduction, and appeals. Reversed.

Among the charges given by the court at the request of the state, to the giving of each of which the defendant separately excepted, were the following: (1) "The court charges the jury that if the jury believe beyond a reasonable doubt from the evidence, that within three years before the finding of the indictment in this case, Geo. Smith, by means of temptations, seduced Beulah Rumsay, who was then an unmarried woman, and that she was then a chaste woman, the jury must convict the defendant." (6) "The court charges the jury that in determining what credence they will give to the testimony of George Smith the jury will look to the fact, in connection with all the other evidence, that he is the defendant in the cause and interested in the result."

The second, third and fourth charges were in the exact words of the first charge, with the exception that they predicated the conviction upon the jury believing that the seduction was accomplished by means of arts, flattery or promises of marriage, respectively. The fifth charge was the same as the first, except that the conviction was predicated upon the jury believing that the seduction was accomplished by means of either temptations, arts, deception, flattery or promise of marriage.

The defendant requested the court to give to the jury, among other written charges, the following, and separately excepted to the court's refusal to give each of them as asked: (2) "The court charges the jury that to authorize a conviction for seduction the woman must be chaste in fact at the time of her alleged seduction; that inquiry being. not as to her character, reputation for chastity at the time of her alleged seduction, but as to her actual chastity at the time." (4) "If the jury believe from the evidence that Beulah Rumsey had had sexual intercourse with any one prior to the time when she alleges she was seduced by defendant, then she was not chaste at the time she alleges she was seduced by him, unless the evidence

also shows that she had reformed before the alleged seduction by defendant."

H. W. Cardon and C. Daniel, for appellant. Wm. C. Fitts, Atty. Gen., for the State

HARALSON, J. 1. In a case of this character, the inquiry is not as to character or reputation of the prosecutrix, but as to her actual chastity at the time of the alleged seduction. Hussey's Case, 86 Ala. 34, 5 South. 484; Wilson's Case, 73 Ala. 527.

It

The witness for defendant, Mat. Sanford, testified to facts the tendency of which was to impeach her chastity at that time. was competent, therefore, for the prosecutrix, in rebuttal, also to adduce evidence of her general character at that time. Smith's Case, 107 Ala. 139, 18 South. 306. Proof of character in this respect, however, since the alleged seduction, is irrelevant to show chastity at the time of seduction. A woman who was unchaste when seduced, may have since reformed and established a good reputation, but it would not follow therefrom, that she was not unchaste at the time of her seduction. The proof, in such cases, should be limited to character at the time of and previous to the alleged seduction. White's Case, 111 Ala. 92, 21 South. 330; Bracken's Case, 111 Ala. 68, 20 South. 636; 1 Brick. Dig. p. 513, § 914.

The witness, Thom. Warren, was asked on cross-examination by the state, "If he knew the character of the prosecutrix, in the neighborhood where she lived, for chastity, before and after the time of her troubles with defendant?" Objection was raised by defendant on the ground that the question called for illegal, irrelevant and incompetent evidence. The evidence, it is presumed, was called for in rebuttal to evidence by defendant tending to impeach her chastity. this purpose, character, up to the time of the alleged seduction, was, as we have seen, competent; but proof of such character after that time, was not proper. The objection

For

was not to a part, but to the whole question and its answer, and as the objection was not limited to that part of the evidence sought, which was illegal, but was general, to that which was legal as well, it was properly overruled.

2. It is well settled that the giving or refusing a charge involving an inquiry into the sufficiency of the evidence to authorize a conviction, will compel a reversal of the judgment, where there was no proof of venue, and that, where there has been no instruction going to the sufficiency of the

evidence to convict, no reversal can be had on account of the absence of evidence of venue from a bill of exceptions reciting that it contained all the evidence, there being no point made in that connection in the court below. Hubbard's Case, 72 Ala. 164; Bowdon's Case, 91 Ala. 61, 62, 8 South. 694; Dentler's Case, 112 Ala. 70, 20 South. 592.

In this case there was full proof, without conflict, of the venue of the crime in Cherokee county, and no instruction was given or refused in respect to the sufficiency of this proof. Charge 1 given at the request of the state, which ignored proof of venue, fully established, was not, therefore, as contended, faulty on that account. Clarke's Case, 78 Ala. 474.

us.

3. Charge 6 for the state was free from error, and has been heretofore approved by Wilkins v. State, 98 Ala. 1, 13 South. 312; Miller's Case, 107 Ala. 42, 19 South. 37; Smith's Case, 107 Ala. 140, 18 South. 306. And so was charge 10. Lewis' Case, 88 Ala. 11, 6 South. 755; Moore's Case, 68 Ala. 360. The other charges requested and given for the state, were correct instructions. See authorities cited sustaining them, under section 5503 of Criminal Code of 1896.

The chastity of the prosecutrix must be presumed, until the defendant introduces evidence to the contrary. The burden is on him to impeach it. Wilson's Case, 73 Ala. 527; 21 Am. & Eng. Enc. Law, 1047, and authorities there cited. When he has introduced evidence sufficient to raise a reasonable doubt of the guilt of defendant, he is entitled to acquittal. Smith's Case, supra; Carney's Case, 79 Ala. 14.

4. Charge 2 requested by defendant was properly refused. While asserting a generally correct proposition of law, it was calculated to confuse and mislead the jury. Evidence had been introduced by the state tending to show the character of prosecu trix, up to the time of the alleged seduction, in rebuttal of evidence by the defendant tending to impeach her chastity at that time. The giving of the charge would have tended to render nugatory this rebutting evidence on the part of the state.

5. Charge 4 requested by defendant and refused seems to be free from error, and does not appear to have been duplicated in other charges given at his request. We do not deem it important to review the other refused charges of defendant, as several of them are substantially duplicated in charges given at his request, and because, from principles laid down above, the cause may be retried without liability to error.

Reversed and remanded.

(119 Ala. 235)

FREEMAN et al. v. PULLEN. (Supreme Court of Alabama. Aug. 15, 1898.) PARTNERSHIP LIABILITY OF PARTNERS SURVIVORS-FRAUDULENT CONVEYANCES-CREDITORS

CLAIMS-AC

AFFECTED PARTIES-EXECUTORS
TIONS- VENUE HEIRS — EQUITY - PLEAS IN
ABATEMENT.

1. A surviving partner may sue in that character for a firm debt without naming the other partners.

2. Under Code 1896, § 40, permitting a partner or his legal representative to be sued for a firm debt, the others need not be joined in a suit to subject land conveyed to the wife of a deceased partner to such debt.

3. The heirs of a decedent need not be joined in a suit to subject to his debts land fraudulently conveyed to his wife.

4. Code 1896, § 331, prohibiting suits against legal representatives, as such, until six months after the grant of letters, does not apply to suits to subject to the debts of decedent property fraudulently conveyed by him.

5. Where an administrator is sued to set aside a conveyance to the wife of a deceased partner, and to subject the proceeds to a partnership debt, the claim need not be filed against the estate.

6. Under Code 1896, § 818, providing that a creditor without a lien may file a bill to subject to his debt any property fraudulently transferred by his debtor, the creditor need not first exhaust his legal remedies to a return of nulla bona; and this whether the debtor be living or dead.

7. A bill against an administrator to subject to the debts of decedent land fraudulently conveyed to the latter's wife must be filed in the county where the land is situated, though the letters were issued in another county.

8. A plea in abatement on the ground of misnomer must deny that defendant is known and called by the name employed.

9. Although the remedy in equitable actions against a plea in abatement on the ground of misnomer, which does not deny that defendant is known and called by the name employed, is by motion to strike, error in sustaining a demurrer thereto is not ground for reversal.

Appeal from chancery court, Limestone county; William H. Simpson, Judge.

Bill by J. D. Pullen against Rachel E. Freeman and others. There was a decree for complainant, and defendants appeal. Affirmed.

The bill was filed in the chancery court of Limestone county on January 11, 1897, by the appellee, as surviving partner of the firm of J. S. Childers & Co., against Rachel E. Freeman, the widow of Hiram S. Freeman, deceased, and against W. H. Oldacre, administrator of the estate of H. S. Freeman, deceased. It was averred in the bill that in 1896 J. S. Childers & Co. sold to the Freeman Lumber Company, "of which said H. S. Freeman was the active and principal partner, goods, wares, and merchandise, consisting of flour, meal, etc., and other articles suitable for a commissary department," and that none of the bills for said goods had been paid, and were past due at the time of the filing of the bill. It was further averred that on August 18, 1896, "one W. F. Scarce, by deed, conveyed to said Rachel E. Freeman, on the recited consideration of $225," a certain described tract of land, sit

uated in Limestone county, Ala.; that the consideration of said conveyance was paid by said H. S. Freeman, who was the husband of the said Rachel, "and the title was taken in her name, to hinder, delay, and defraud the grantors of said H. S. Freeman, he and said Freeman Lumber Company being heavily indebted and insolvent." The prayer of the bill was that a receiver be appointed to take charge of the rents of said land and to rent the same, and that on the final hearing the land conveyed to the said Rachel E. Freeman by the said Scarce be subjected to the payment of the demand due the complainant. To this bill the defendants demurred upon many grounds, which may be summarized as follows: (1) The names of the partners composing the firm of J. S. Childers & Co. are not set out in the bill. (2) The surviving partner or partners of the Freeman Lumber Company are not made parties to the bill. (3) That the bill is repugnant, in that it seeks a recovery in favor of complainant, in his individual right, for a debt which is alleged to be due the firm of J. S. Childers & Co. (4) It is not averred that Rachel E. Freeman is insolvent. (5) It is not averred that the assets of the estate of H. S. Freeman are insufficient to pay the alleged claim. (6) It is not averred that the surviving partner or partners of the Freeman Lumber Company are insolvent. (7) It is not averred in the bill that an effort has been made by complainant or J. S. Childers & Co. to collect the claim of the Freeman Lumber Company. (8) It is not averred in the bill that complainant or J. S. Childers & Co. have prosecuted the alleged claim against the Freeman Lumber Company to insolvency, and failed to collect the same. (9) There is no claim brought in the bill against the estate of H. S. Freeman, deceased, or against W. H. Oldacre as administrator of his estate. (10) The charges of fraud, as made in the bill, are insufficient to put the defendants to an answer. (11) It is not averred in the bill that the alleged claim has been presented to the administrator, or filed against the estate of H. S. Freeman. (12) It is not averred in the bill that a judgment has been obtained in favor of the complainant against the surviving partner or partners of the Freeman Lumber Company, and that the execution was issued thereon, and returned "No property found." The complainants also moved to dismiss the bill for want of equity. They also filed the following pleas to the bill: (1) That this suit was brought in less than six months after W. H. Oldacre was appointed administrator of H. S. Freeman, deceased. (2) Letters of administration were granted to the defendant W. H. Oldacre on the estate of H. S. Freeman, deceased, by the probate court of Morgan county, Ala., and suit cannot be maintained against him in any other county than the one in which he was appointed such administrator. (3) W. H. Perkins and M.