fendants filed three several motions to strike the several replications of plaintiffs upon the ground (stated in various ways) that the replications were no answer to the several pleas. These motions the court granted, and the plaintiffs separately excepted to the striking of each of the replications. Issue was then joined upon the plea of non est factum and upon three other pleas of the defendants. It was shown upon the trial that at the time of the execution of the bonds sued on the defendants were engaged in the mercantile business, in Ashford, Ala., using the name and style of the firm which was signed to the bonds. It was also proven that the bonds were signed by W. W. Milliken, one of the defendants, who signed his firm's name to both of said bonds. The bonds were admitted in evidence. W. W. Milliken testified that he signed his firm's name to both of said bonds, without the authority of his co-partner, and that his co-partner knew nothing about the execution of said bonds until some time thereafter. The defendant Milliken also testified that said bonds were executed at the request of one Burbage, for the purpose of enabling said Burbage to use the bonds as a means of raising and borrowing money, and that he signed the bonds on Sunday, and mailed them to the address of Burbage, in Brunswick, Ga., on Sunday; that there was no other consideration for the execution of said bonds than his desire to accommodate said Burbage. Burbage testified that he received the bonds and transferred them to the plaintiffs as collateral security for a loan of money made by them to him in New York City on the day and at the time he transferred them the bonds. In other words, the loan of money was induced by the transfer of the bonds. He also testified that the bonds were accommodation papers, and that they were sent him for the purpose of enabling him to borrow money. He denies that the plaintiffs had any knowledge of the accommodation character of the papers. The plaintiffs testified that Burbage negotiated the papers to them in consideration of loans of certain amounts of money. The court, at the request of the defendants, gave the general affirmative charge in their behalf, and to the giving of this charge the plaintiffs separately excepted. There were verdict and judgment for the defendants. The plaintiffs appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

H. A. Pearce and W. W. Sanders, for appellants. G. L. Comer and Espy & Farmer, for appellees.

MCCLELLAN, J. Milliken, at the request of Burbage, for his accommodation, and to enable him to raise money on the paper by indorsing and delivering it to some third party, signed a bond, and delivered it to Burbage. The latter, in consonance with Milliken's intention, indorsed, transferred, and delivered the bond to Talmadge & Co. for a valuable

The

consideration passing at the time to him, Burbage. Talmadge & Co. bring this suit against Milliken on that bond. Milliken defends on the ground that there was no consideration for the obligation as between him and Burbage, and insists that, he being the payor and Burbage the payee, and the paper not being commercial, he is entitled to make this defense against Talmadge & Co. under section 2594 of the Code of 1886; and this defense was allowed in the court below. The trial court fell into error in this matter. paper in the hands of Burbage, the accommodated party, was not a bond or obligatory contract in any sense, nor was Milliken, in respect thereof, a payor, nor Burbage a payee. It was only when Burbage, in line with Milliken's purpose in signing the paper for the accommodation of Burbage, indorsed and delivered it for value to Talmadge & Co. that the paper became a contract at all, and then it became the contract of Milliken, as payor, and Burbage, as indorser, to pay the sum nominated in the bond to Talmadge & Co., as payees, and they are and are to be considered for all purposes, so far as Milliken's liability is concerned, the payees of the bond; and the consideration which actually passed between them and Burbage passed also in legal contemplation between them and Milliken, and supports une latter's promise to pay as fully as if he had in the first instance received value from Burbage. Accommodation paper is not within that provision of the statute referred to which gives to the payor, as against the transferee, any defense which he would have had against the payee, because the transferee is himself the real and only payee, and the nominal payee is not a payee at all in legal contemplation or in fact. We have treated the action as being against Milliken alone, because it is clear on the evidence that neither Meigs nor the partnership of Milliken & Meigs was at all bound by the subscription of the partnership name by Milliken to the bond. Reversed and remanded.

(119 Ala. 521)

CHRISTIAN V. CHRISTIAN. (Supreme Court of Alabama. Nov. 5, 1898.) APPEAL-HARMLESS ERROR.

A defendant in a proceeding in the probate court for the sale and distribution of personal property, alleging that he has no interest in the property, and that his wife is the sole owner thereof. cannot assign as error the rendition of a decree of saie without making her a party.

Appeal from probate court, Chilton county; R. M. Honeycutt, Judge.

Petition in the probate court by Jesse Christian against W. E. Christian and others to sell certain personal property for distribution among the joint owners thereof. From a decree of sale, W. E. Christian appeals. Affirmed.

W. E. Christian assigns as error the rendering of the decree of sale without having had

Barbara E. Christian brought in by service of the process, and when it appeared that all the property ordered sold was the property of said Barbara E. Christian, and in her possession.

Robert H. Knox and S. W. John, for appellant. Smith & Dennis, for appellee.

COLEMAN, J. The appellee, Jesse Christian, filed a petition in the probate court to sell certain personal property for distribution. The petition averred that he and four other persons, who were named, owned the property, each a one-fifth interest. Among those named as part owners was the appellant, W. E. Christian. Service of notice was perfected upon the parties named. W. E. Christian appeared, and objected to any further proceeding by the court, and filed a verified answer that all the property mentioned in the petition, except one mule, was. the property of his wife, Barbara Christian, and was at that time, and at the time of the filing of the petition, in her exclusive possession, and owned and claimed by her, and that he owned no interest in it. Upon the filing of this answer, the petitioner moved the court for leave to amend the petition so as to make Barbara Christian a party, whether as co-petitioner or as defendant does not appear. Leave was granted to amend the petition, but it does not appear that the amendment was in fact made, or that she appeared fn court, or that she was served with notice of the proceeding. No other attention seems to have been paid to the answer of W. E. Christian. Depositions were taken as in chancery cases. Conceding that the court had jurisdiction, Barbara Christian, not having been made a party to the proceedings by legal notice in pursuance of the order allowing the amendment, and not appearing in court, the decree of the court could not devest her of any right or claim she may have had in the property. She should have been served with notice. Alston v. Alston, 34 Ala. 15. She can still assert any right she may have had in and to the property, as she may be advised. There was sufficient evidence tending to support the averments of the petition to authorize the decree of sale in accordance with the prayer of the petition, and none in support of the verified answer of the husband. W. E. Christian cannot be allowed to assign errors as to the rulings of the court affecting the rights of Barbara Christian, his wife, and which were not prejudicial to his own individual interest. Affirmed.

(119 Ala. 59)

HARTFORD et al. v. CITY OF ATTALLA. (Supreme Court of Alabama. Nov. 5, 1898.) DIRECTING VERDICT-WRITTEN CONTRACT-MODI

FICATION.

1. In an action for work and labor defendant pleaded failure to complete the work within the time stipulated by the contract, and claimed as a

set-off the penalty under the contract. Plaintiff replied that the delay complained of was the result of defendant's failure to comply with the stipulation in the contract. Issue was joined on the replication, and there was some evidence to support it. Held error to direct verdict for defendant.

2. Parties to written contract may modify its provisions by a subsequent parol agreement.

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

Action by Hartford, Herbert & Co. against the city of Attalla. There was a judgment for defendant, and plaintiffs appeal. Reversed.

Amos E. Goodhue, for appellants.

COLEMAN, J. The appellants, plaintiffs in the trial court, sued to recover of the defendant an amount of money, stated in the complaint. The complaint is in form upon the common counts,-the first, for work and labor done; second, for money paid at the request of the defendant; third, for money received by defendant for plaintiffs; and, fourth, for goods, wares, and merchandise sold. The case was tried upon issue raised upon pleas of the general issue, of payment, and upon plaintiffs' replication to special plea numbered 3, and upon special plea numbered 4. After the close of the evidence, the court gave the affirmative charge in favor of the defendant. This is assigned as error.

We incline to the view that the court overlooked the issues made by the pleadings, and upon which the case was tried. The first plea of the defendant simply traversed the averments of the complaint. There is no controversy that the plaintiffs performed work and labor for the defendant, as averred in the complaint, to say nothing of either of the common counts. The second plea was that of payment. The defendant offered no evidence in support of this plea. True, there is some testimony in the evidence of the plaintiffs of payments made, but not such as to authorize the general charge as to the plea of payment. The third plea of the defendant is a special plea, in which it is averred that the matters of litigation arose from a special contract between the city and the plaintiffs, which contract provided that, if plaintiffs failed to complete the work by a named day, the plaintiffs were to forfeit $10 per day thereafter. The plea then avers a failure to complete the work within the time stipulated, and claimed as a set-off the penalty. Leaving out of view the first replication to this plea, the fourth replication was "that the delay complained of was the result of defendant's failure to comply with a stipulation on its part, in this: that the defendant failed to locate the said arc light as by the terms of said contract it was required to do." Issue was joined upon this replication. There was some evidence tending to support this replication, upon which issue was joined. We are not prepared to say that there was no evidence tending to support the count for money had and received. Some

questions are argued in brief of counsel for appellee as to the liability of the defendant, but which are not raised by the pleadings. We will not anticipate the action of the court on another trial, and upon different issues. It is well settled that parties to a written contract may modify its provisions by a subsequent parol agreement. There was no evidence of fered in support of defendant's fourth plea. Reversed and remanded.

(119 Ala. 513)

MCLENDON et al. v. GRICE. (Supreme Court of Alabama. Nov. 5, 1898.) - PRESUMPTIONS APPEAL-RECORD PLEADING

TRIAL

ERROR CURED ADMISSION OF TESTIMONY-FRAUDULENT CONVEYANCES-USURY.

1. Where the bill of exceptions shows that defendant filed a plea of the general issue and a special plea of justification, and that the matters urged by both parties on which assignments of error are based were such as could properly have been presented only under the special plea, the cause will be treated as having been tried on the special plea, where the record and judgment entry do not show on what issue the cause was tried.

2. Error in excluding a question propounded to plaintiff on cross-examination is cured by defendant's subsequently obtaining the desired evidence by the testimony of another witness.

3. A party should be permitted to explain testimony previously given by him to rebut the effect of the testimony of his own witness.

4. Defendant cannot object to plaintiff's testifying to rebut the effect of his own witness, on the ground that defendant was not permitted to cross-examine plaintiff on the subject on his direct examination, where defendant is permitted to cross-examine after the admission of the testimony in rebuttal.

5. On an issue as to whether a loan for which goods had been transferred to the lender before they were attached was simulated, the lender may show that, when the loan was made, the borrower stated to him that a railroad company was owing him the amount of the loan, where the attaching creditor contends that the loan was improbable, because the borrower had but little property.

6. A sale of goods in part payment of a debt exceeding the market value of the goods is valid against the seller's creditors, where no benefit is reserved to the seller.

7. A sale of goods to pay a loan is valid as against the seller's creditors, though he has contracted to pay usurious interest, if the value of the goods does not exceed the principal.

Appeal from circuit court, Henry county; J. M. Carmichael, Judge.

Action by R. C. Grice against W. A. McLendon and others on a sheriff's bond to recover for a wrongful attachment. Judgment for plaintiff, and defendants appeal. Affirmed.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charge: "If the jury believe from the evidence that Lanier owed Grice an honest debt, equal to the value of the goods sold, and that the goods were sold at a fair price, and no interest was reserved to Lanier, then the jury must find for the plaintiff." The defendants duly excepted to the giving of this charge, and

also excepted to the court's refusal to give the following charge requested by them: "If the jury are reasonably satisfied from the evidence that at the time Grice sold the goods and advanced the money to Lanier, that it was agreed between Grice and Lanier that Lanier should pay, on the price of said goods so sold and the money so loaned, 21⁄2 per cent. per month on the same, then said transaction was illegal, and Grice cannot recover in this action." There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the rulings of the court upon the evidence to which exceptions were reserved, the giving of the charge requested by the plaintiff, and the refusal to give the charge requested by the defendants. G. L. Comer and H. A. Pearce, for appellants. Espy & Farmer, for appellee.

BRICKELL, C. J. Neither the record proper nor the judgment entry in this cause shows upon what issues the cause was tried. The bill of exceptions, however, recites that a plea of the general issue and a special plea of justification under legal process were filed; and its whole tenor shows that the matters urged by both parties, and considered by the court, upon which the assignments of error are based, were such as could properly have been presented only under the special plea of justification. On the authority of Brinson v. Edwards, 94 Ala. 451, 10 South. 219, a precisely similar case, the cause will be treated as having been tried on said issue.

The action was instituted by appellee against appellant and the sureties on his official bond as sheriff, to recover damages for the wrongful levy of a writ of attachment, sued out against one Lanier, upon a stock of goods which plaintiff claims to have purchased from Lanier a few days before the attachment was sued out, at a valuation of $631.61, in part payment of a past indebtedness of a greater amount. A part of this indebtedness, amounting to $612, was secured by two mortgages upon the same stock of goods, executed at different times, to secure a loan of different sums aggregating said amount, which mortgages were recorded within a day or two after their execution. At the time of the transaction, plaintiff and Lanier were engaged in business in adjoining buildings; and Lanier, in addition to his mercantile business, conducted a pool table, the entire business being under the management of his clerk, J. T. Windsor, Lanier himself being absent most of the time. After the alleged purchase, plaintiff employed Windsor to continue to manage his business as before, the goods not being removed until seized, a few days after the sale, by the sheriff. The evidence tended to show that plaintiff was largely indebted at the time he claims to have made the loans to Lanier, and that the latter had no property besides the stock of goods, so far as plaintiff knew, to which he

could look for payment, except a claim which Lanler told him he had against a railroad company.

If there was any error in excluding the question propounded to plaintiff on cross-examination as to whether, after his purchase of the stock of goods, and the employment of Windsor, the latter "did not continue to look after the pool table in connection with the goods just as he had previously done," the error was cured by the subsequent admission of the testimony of Windsor, which answered affirmatively the question excluded. Railroad Co. v. Frazier, 93 Ala. 45, 9 South. 303; Eastis v. Montgomery, 93 Ala. 293, 9 South. 311.

The trial court may, at any time before the evidence closes, permit a witness to correct, explain, or limit his previously given testimony, or to rebut the effect of the testimony of one of his own witnesses, although he thereby contradicts his own previous testimony. Hence it was not error to permit plaintiff, who on direct examination had testified that he had made no trade with Lanier concerning the pool table, to state in rebuttal, after evidence had been offered tending to show that there had been some trade made concerning the table, that Lanier told him the table belonged to a third person, but that he could use it until it was called for by the owner, and apply the income arising therefrom to the payment of the balance due on his indebtedness. It was no good ground of objection to the admission of this testimony that defendant was not allowed, on the examination in chief, to cross-examine plaintiff on the same subject, since he had every opportunity to cross-examine him after the admission of the testimony in rebuttal.

Plaintiff was permitted to testify in rebuttal, in answer to a question propounded by his counsel, and against defendant's objection, that, at the time he loaned to Lanier the sum of $450, the latter told him that "the Alabama Midland Railway Company owed him the money, and that he would be able to pay him when the note became due." In view of the theory of the defense that the Indebtedness of Lanier to plaintiff was simulated, and of that tendency of the evidence, brought out by defendant, which would justify an argument based upon the improbability of plaintiff's lending so large a sum to one who had no other property or means of payment except the small stock of goods, upon which he already held a mortgage, the testimony objected to was admissible, as tending to explain away this improbability. It was not, of course, admissible to show the fact of the railroad company's indebtedness to Lanier, but only for the purpose stated.

The charge given by the court at the request of the plaintiff was evidently intended to assert the proposition that if the goods were received by plaintiff in absolute payment or part payment of a bona fide debt, not less in amount than the fair market value

of the goods, and if no benefit was reserved to Lanier, the sale was valid. There was no error in the instruction. The charge requested by defendant was properly refused. The mere fact that, at the time the indebtedness of Lanier to plaintiff was created, the former agreed to pay usurious interest, did not vitiate the subsequent transaction resulting in the sale of the goods. The testimony shows that the debt without any usurious interest was greater than the value of the stock of goods, and it is only when usurious interest is included and allowed, in order to swell the amount of the debt so that it will equal or approximate the value of the property, that the transaction will be declared fraudulent on account of the usury. Harris v. Russell, 93 Ala. 59, 9 South. 541; Lehman, Durr & Co. v. Greenhut, 88 Ala. 478, 7 South. 299. Let the judgment be affirmed.

(120 Ala. 206)

GEORGE F. DITTMAN BOOT & SHOE CO. V. MIXON et al.

(Supreme Court of Alabama. Oct. 29, 1898.) MORTGAGES-SATISFACTION-PENALTIES-DUE PROCESS OF LAW-INTERSTATE COMMERCEATTACHMENT-AFFIDAVIT.

1. The constitutional provision as to due pro cess of law is not violated by Code 1896, § 1066, imposing a penalty on a mortgagee whose mort gage has been satisfied for failure to enter the satisfaction of record after being requested to do so.

2. Code 1896, § 1066, imposing a penalty on a mortgagee whose mortgage has been satisfied for failure to enter satisfaction of record after being requested to do so, does not interfere with interstate commerce in its application to nonresident mortgagees.

3. The complaint was in three counts, each claiming the statutory penalty of $200 imposed on a mortgagee whose mortgage has been satisfied for failure to enter the satisfaction of record, on request, and each based on a separate request. An affidavit of attachment in the suit, describing the demand as "the sum of $600," was amended so as to describe it as "in the sum of $600, by three statutory penalties of $200 each." Held, that the amendment was justified by Code 1896, § 564, authorizing amendments of "any defect of form or substance in the affidavit, bond, or attachment."

4. Under Code 1896, § 524, subd. 2, providing that "any money demand" may be enforced by attachment, that remedy will lie on a statutory penalty, where the amount is fixed or can be certainly ascertained.

Appeal from circuit court, Marion county; Thomas R. Roulhac, Judge.

Action by H. E. Mixon and others against the George F. Dittman Boot & Shoe Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

The action was commenced by an attachment sued out by the plaintiffs. The defendant was a foreign corporation, and it was upon this ground that the attachment was sued out. The original affidavit, made as preliminary to the suing out of the writ of attachment, described the demand sued for as "the sum of six hundred dollars, which said

amount is justly due, after allowing all just offsets and discounts." The complaint, which was subsequently filed, contained four counts. The first count claimed $600 due the plaintiffs, for that the defendant had refused, after three several written requests, to mark upon the margin of the mortgage record the partial payments and full satisfaction of the mortgage debt which was due from the plaintiffs to the defendant. The complaint was subsequently amended by striking out the first count. The three remaining counts of the complaint each claimed the statutory penalty of $200 for the failure of the defendant, as mortgagee, to enter the fact of payment of satisfaction on the margin of the record of the mortgage, after being requested in writing to make such entry, and for the failure of the defendant to enter the fact of several partial payments upon the margin of the record of the mortgage as requested. Subsequently the affidavit was amended so as to describe the demand sued for as a demand against the defendant "in the sum of six hundred dollars, by three statutory penalties of two hundred dollars each, which said amount and demands are justly due, after allowing all just offsets and discounts." The defendant moved to strike the amended affidavit from the file, upon the ground that the amendment is a departure from the cause of action as stated in the original affidavit, and because there is a total variance between the cause of action set forth in the original affidavit and the one set forth in the amended affidavit. This motion was overruled, and the defendant duly excepted. The other facts of the case, necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. The court instructed the jury that the plaintiffs could recover only one penalty. The defendant requested the court to give to the jury the general affirmative charge in its behalf, and duly excepted to the court's refusal to give said charge as asked. There were verdict and judgment for the plaintiffs. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Appling & McGuire, for appellant. Daniel Collier and W. C. Davis, for appellees.

COLEMAN, J. The appellees, residing in Marion county, Ala., began suit by attachment against the appellant, a foreign corporation, to recover the statutory penalty imposed upon a mortgagee, who has been paid or satisfied, for failure to enter the fact of payment or satisfaction on the margin of the record of the mortgage, after being requested in writing to make such entry. Code 1896, § 1066. That the plaintiffs were mortgagors, and defendant a mortgagee; that the debt was fully paid; and the mortgagee was requested, in writing, by the mortgagors, to enter such payment or satisfaction, and failed to comply

with the request within the time provided by statute, is established by the evidence beyond all controversy and without conflict. Much of the argument of appellant's counsel is directed against the first count of the com-. plaint, but the judgment entry shows that the complaint was amended by striking out the first count. This left three separate counts, each claiming the statutory penalty of $200, and each based upon a separate and additional notice and request. The court properly instructed the jury that only one penalty of $200 was recoverable, and such was the verdict of the jury. There is nothing to support the contention that plaintiffs sought to recover $600. In the case of Walker v. English, 106 Ala. 369, 17 South. 715, in which it appeared that the mortgagee was a citizen of Tennessee, the court reiterated the rule declared in Renfro v. Adams, 62 Ala. 302, “that the failure of the mortgagee [to enter satisfaction], whether willful, intentional, or inadvertent, subjects him to liability for the penalty." In the case of Gay v. Rogers, 109 Ala. 624, 20 South. 37, the constitutionality of the act was sustained.

We can see no force in the argument that the statute interferes with interstate commerce. There is no law which required a mortgagee to record his mortgage. There are certain benefits and advantages to be derived from a compliance with the statute of registration. If a mortgagee avails himself of these advantages, he assumes the legal responsibility of such a course. Having published to the world that he held a lien upon the property of the debtor, it is made his legal duty, upon the written request of the mortgagor, to give equal publicity to the fact when the lien has been discharged, and the legal duty is enforced by the imposition of a penalty by statute. There is nothing in that objection.

The amendment of the affidavit was justified by the statute which authorizes amendments of "any defect of form or substance in the affidavit, bond, or attachment." Code 1896, § 564. The cause of action, as described in the complaint, follows that described in the amended affidavit upon which the attachment issued. The objection that there was a variance or departure is not well taken.

It is further insisted that the statute does not authorize the issuance of an attachment to recover a penalty. "Debt," in subdivision 1 of section 524 of the Code of 1896, may import only such demands as arise from contract, express or implied; but "any money demand," as used in subdivision 2, is much more comprehensive than "debt," and includes all rightful claims, whether founded upon contract, tort, or penalties given by statute, and may be enforced by attachment when the amount is fixed or can be certainly ascertained. Stock Co. v. Clark, 95 Ala. 322, 10 South. 917; Bouv. Dict. "Demand." There is no error in the record. Affirmed.